IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 28, 2009
Charles R. Fulbruge III
No. 09-40524 Clerk
Summary Calendar
SLYVESTER MCCLAIN, on his own behalf and on behalf of a class of
similarly situated persons; BUFORD THOMAS, on his own behalf and on
behalf of a class of similarly situated persons; PATRICK ROSS, on his own
behalf and on behalf of a class of similarly situated persons; MARY THOMAS,
on his own behalf and on behalf of a class of similarly situated persons;
EDDIE K MASK, on his own behalf and on behalf of a class of similarly
situated persons; LEROY GARNER, on his own behalf and on behalf of a
class of similarly situated persons; SHERRY CALLOWAY SWINT, on his own
behalf and on behalf of a class of similarly situated persons; WALTER
BUTLER, on his own behalf and on behalf of a class of similarly situated
persons; FLORINE THOMPSON, on his own behalf and on behalf of a class of
similarly situated persons; CLARENCE OWENS, on his own behalf and on
behalf of a class of similarly situated persons; CLIFFORD R. DUIRDEN, on
his own behalf and on behalf of a class of similarly situated persons; EARL
POTTS, on his own behalf and on behalf of a class of similarly situated
persons; ROALD MARK, on his own behalf and on behalf of a class of
similarly situated persons; PLAINTIFF CLASS, on his own behalf and on
behalf of a class of similarly situated persons; ALL PLAINTIFFS, on his own
behalf and on behalf of a class of similarly situated persons,
Plaintiffs-Appellants Cross-Appellees
v.
LUFKIN INDUSTRIES INC,
Defendant-Appellee Cross-Appellant
No. 09-40524
Appeal from the United States District Court
for the Eastern District of Texas
No. 9:97-CV-63
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Appellee-cross-appellant Lufkin Industries, Inc. (“Lufkin”) seeks dismissal
of this appeal for lack of subject matter jurisdiction. On February 29, 2008, this
court ruled on an appeal from the original final judgment in this Title VII class
action case. See McClain v. Lufkin Indus., Inc., 519 F.3d 264 (5th Cir. 2008).
We first vacated the judgment as to Lufkin’s liability for initial job assignments
and affirmed the judgment as to Lufkin’s liability for discrimination in
promotions. Second, we vacated and remanded the award of monetary damages
and injunctive relief. Finally, we vacated and remanded the award of attorneys’
fees because the district court offered no reason to justify its 25% across-the-
board reduction of all billable hours. We instructed the district court to conduct
the proper lodestar-fee and Johnson analyses.
On remand, the district court has yet to determine the final amount of
monetary damages or the scope of injunctive relief. However, on April 2, 2009,
the district court granted the plaintiffs an interim award of attorneys’ fees, costs,
and expenses through January 1, 2009. The court stated that the interim award
would be recoverable regardless of the final amount of monetary damages or the
scope of injunctive relief. The district court also certified the award as a final
judgment as to the plaintiffs’ separate claims for attorneys’ fees pursuant to Rule
54(b) of the Federal Rules of Civil Procedure. The plaintiffs filed an appeal of
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 09-40524
the interim award, and Lufkin now challenges this court’s jurisdiction over the
appeal.
“An interim fee order is not a final judgment, and thus may be reviewed
only if the collateral order doctrine applies.” Walker v. U.S. Dep’t of Hous. and
Urban Dev., 99 F.3d 761, 766 (5th Cir. 1996) (citing Ruiz v. Estelle, 609 F.2d 118,
118–19 (5th Cir. 1980)). Under this doctrine, we may review orders that: “(1)
conclusively determine the disputed question; (2) resolve an issue that is
completely separate from the merits of the action; and (3) would be effectively
unreviewable on appeal from a final judgment.” Id. (citing Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 545–47 (1949)).
Lufkin argues that the third prong is not satisfied because the interim
award would be reviewable after the district court enters its final order. In
Walker, the interim fee award was for non-litigation efforts such as monitoring
the city’s compliance with a consent decree. Id. Since these actions would never
result in an appealable final judgment, we held that the interim fee award
satisfied the third prong and passed the collateral order test. Id. at 766-67.
Conversely, in Shipes v. Trinity Industries, Inc., 883 F.2d 339 (5th Cir. 1989), we
concluded that an interim fee award failed the collateral order test. The interim
award in Shipes came after plaintiffs succeeded on the issue of liability and
while the issue of remedies was still pending. Id. at 340. We concluded that the
award could have effectively been reviewed after the final judgment. Id. at
344–45. Lufkin argues that the interim award in this case is reviewable on
appeal from the final judgment like in Shipes and unlike the award in Walker.
Assuming without deciding that the first two prongs of the collateral order
test are satisfied, the interim award in this case fails the third. Unlike the
interim award in Walker, this award of attorneys’ fees is connected to work that
will eventually result in an appealable final judgment and can be reviewed at
that time. See Campanioni v. Barr, 962 F.2d 461, 463 (5th Cir. 1992) (“[T]his
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court has consistently held that a district court’s interim award of attorney’s fees
is not appealable under the Cohen doctrine, in part because the fee award is
effectively reviewable after final judgment on the merits of the case is entered.”).
In Ruiz, we recognized an exception to this third prong—an award may be
unappealable as a practical matter “if the defendant ha[s] alleged and proved
that the mere payment of the fees would make them unrecoverable.” 609 F.2d
at 119. This exception is not applicable here because it is the plaintiffs who are
appealing their award of attorneys’ fees and Lufkin has deposited the amount
of the award in plaintiffs’ trust fund. Thus, the interim award fails the collateral
order test because the award will be reviewable on appeal after the district court
enters a final judgment. It is therefore:
ORDERED that this appeal is DISMISSED.
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